Can a lawyer who investigates public corruption for a municipal department of investigation take part in partisan political activity?

Plain-English summary

The committee was asked whether the restrictions it had placed in N.Y. State 683 (1996) on the partisan political activities of assistant district attorneys also applied to examining attorneys employed by a municipality's Department of Investigation (DOI). It concluded they did. Under the municipal charter, the DOI is headed by an attorney-commissioner with law-enforcement experience who is empowered to investigate the affairs and personnel of any municipal agency, anyone doing business with the municipality, and anyone receiving municipal money, and who must forward findings of possible criminal conduct to the appropriate prosecutor. An examining attorney's duties included issuing subpoenas, conducting depositions, auditing records, drafting investigative reports, and coordinating detectives and accountants.

In Opinion 683, the committee had reasoned that a prosecutor who exercised, or appeared to exercise, prosecutorial discretion to advance political interests would be engaging in conduct prejudicial to the administration of justice under DR 1-102(A)(5). The concern was the risk that prosecutors, given their vast and largely unreviewable discretion, would act or be perceived as acting to favor those with political connections. The committee found that although DOI attorneys cannot commence criminal proceedings, they perform investigative functions, including investigating criminal activity, hold subpoena power, and must refer criminal findings to a prosecutor, work that prosecutors themselves perform before charging. It therefore treated the examining attorney as playing a substantial law-enforcement role, so the same concern applied with equal force: a politically active examining attorney's decisions about whom to investigate could actually or apparently turn on political connections.

The committee rejected the argument that the prosecutor's later, independent review was a sufficient check. It explained that there is little check if potential criminal conduct is never investigated, for actual or apparent partisan reasons, and never reaches a prosecutor; and that even where a prosecutor declines to charge after reviewing the DOI's findings, the subject may already have suffered substantial injury to business, career, or reputation because an investigation was opened for actual or apparent partisan reasons.

Currency note

This opinion was issued in 1997, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the bar on partisan political activity reach lawyers who only investigate, not prosecute?

A: The opinion concluded yes for a municipal examining attorney who investigates public corruption, holds subpoena power, and must refer criminal matters to a prosecutor, because that role is a substantial part of the law-enforcement process.

Q: Why does investigative work trigger the same restriction as prosecuting?

A: The opinion reasoned that an investigator's discretion over whom to investigate can, like a prosecutor's, actually or apparently turn on political connections, which DR 1-102(A)(5) treats as prejudicial to the administration of justice.

Q: Doesn't the prosecutor's later review cure the problem?

A: The opinion concluded it does not, because conduct never investigated for partisan reasons never reaches the prosecutor, and a subject can be harmed by the investigation itself even if charges are ultimately declined.

Background and rules framework

The opinion interpreted DR 1-102(A)(5) of New York's former Code (conduct prejudicial to the administration of justice), applying it to a municipal investigative attorney by analogy to prosecutors. The Model Rule analogue is Rule 8.4(d) (conduct prejudicial to the administration of justice). The opinion extends the holding of N.Y. State 683 (1996). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.

Citations and references

Rules of Professional Conduct:

• MR 8.4(d) (conduct prejudicial to the administration of justice)
• NY DR 1-102(A)(5)

Other authorities cited:

• ABA Standards Relating to the Administration of Criminal Justice 3-3.1 (investigative function of the prosecutor)

Other opinions cited:

• N.Y. State 683 (1996): assistant district attorneys may not engage in partisan political activity

See also

• NY State Bar Op. 1071: Partisan political activity by a police-oversight agency lawyer
• NY State Bar Op. 702: Practice of law by a county legislator
• NY State Bar Op. 725: Assistant DA appearing before a sibling Town Justice

Source

• Landing page: https://nysba.org/opinion-696/